Smith v. Ordinary

McCay, Judge.

1. The petitioner, in this case, was elected and held office under the Constitution and laws in operation in this State in 1866, 1867 and 1868. If that was no government, he was no officer. If the Legislature which passed the Act of 1866 was an illegal body, he was illegally holding office, since the Act of Congress, on which he relies, applies just as much to him as it does the Legislature, since both he and they are but different parts of the same government. Besides, the contract of the petitioner, if it be a contract, was to take the office and perform its duties for the compensation as fixed by the laws in force at the time, and under the government which gave him official existence.

2. But we do not agree that the Act of the Legislature of ■1865 and 1866, if in accord with the Constitution then in -operation, and not contrary to the Constitution of the United 'States, needed confirmation by the Constitution of 1868. For purposes of caution, and to meet possible objections, the •Convention included in their confirmatory Act the whole .period from 1861 to July, 1868. But the government set -up in 1865 was in accord with the United States. It was either a legal civil government under the Constitution of -the United States, or it was a defacto government, permitted • and sustained by the military power which was then in pos- . session of the State under the laws of the United States. It was not a rebellions organization, and it had every quality of a de facto government that a de facto government can have It was not obnoxious to the objection of the government set up during the war, that it was in antagonism to the Constitution of the United States. If it was not a strictly legal organization, under the Constitution of the United States, (which question we do not enter into). It was at least, even according to the theory of the plaintiff, the mode and manner by which the military power exercised its control. In any event, therefore, the mandamus was properly refused.

Judgment affirmed.